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New decision

 

On the other hand, in the case of a positive time bank, it is possible for the worker to have time off or receive overtime pay with an additional 50%.

 

 

In the 2nd group, the TST maintained the validity of a collective rule that authorized the deduction of a negative time bank at the end of each 12-month period or in severance pay in cases of resignation or dismissal for just cause. According to the panel, this normative provision does not deal with an absolutely unavailable right guaranteed by the Federal Constitution and international treaties or in occupational health and safety standards and, therefore, can be limited through collective negotiation.

 

The collective labor agreements signed between 2012 and 2014 between the Metallurgical Industry Workers Union of Londrina and Region and an electronics industry provided that the period for calculating credits and debits from the time bank would be 12 months. If there was a debt, the hours would be deducted as absences, and the credits would be paid as overtime. If the employee were dismissed by the company, the negative balance would be paid off. If you resigned or were fired for just cause, there would be a discount.

 

 

 

Collective rule may allow negative salary deductions.

In a public civil action, the  MPT -  Public Ministry of Labor argued, among other points, that there was no legal authorization for the discounts and that the clauses would violate an unavailable right and would cause harm to employees, as they transferred the risks of economic activity to them.

 

The claims were rejected in the lower courts. The understanding reached was that the content of the collective agreement did not deal with an unavailable right nor was it abusive, since it also created the company's duty to pay an additional 50% on the hours of a possible positive balance in the hours bank. 

 

Decision

 

Minister Maria Helena rapporteur of the MPT's review appeal, noted that the TST's previous jurisprudence was that the exemption from providing services, even if requested by the employee, serves the interests of the economic sector. Therefore, the lack of compensation for these hours over the course of a year and the possible resulting losses should be assumed by the employer, not the employee.

 

However, highlighted that this interpretation has been changed. Following the binding thesis of general repercussion established by the STF ( Theme 1,046 ), only absolutely unavailable rights guaranteed by the Federal Constitution, international treaties or occupational health and safety standards cannot be reduced by collective negotiation. 

 

In this case, she concluded that the implementation of the time bank under these terms does not involve an inalienable right and, therefore, the collective agreement signed between the union and the company is valid.

 

Process : 116-23.2015.5.09.0513

 

Information: TST.